7:53 PM, April 3, 2014
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Tommy Lynn Sells was scheduled to be executed Thursday evening. / AP

by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

WASHINGTON - The Supreme Court refused to halt a Texas serial killer's execution Thursday despite complaints about secrecy surrounding the drugs being used to kill him.

Tommy Lynn Sells was executed Thursday night in Huntsville, Texas. A flurry of last-minute legal efforts to stop it followed recent problems with executions in several states, as the stock of lethal-injection drugs and willing suppliers has dried up.

Sells, 49, was sentenced to death for the 1999 stabbing of a 13-year-old girl. He claimed to have killed up to 70 people across the country.

He won his petition for a stay of execution Wednesday in federal district court, which ruled that the state must inform lawyers how they planned to kill him and another death row inmate scheduled for execution next week.

The Fifth Circuit Court of Appeals immediately overturned the ruling in Sells' case and said the drug supplier's name should remain secret to protect against threats of violence.

Sells' Supreme Court petition listed as defendants a variety of state officials and "unknown executioners." It demanded to know the source of the pentobarbital the state planned to use in his execution, how it was prepared and who had tested it, citing the Eighth Amendment's protection against cruel and unusual punishment.

Sells "has a constitutional interest - and consequent due process rights - in not being executed in a torturous manner," his attorneys told the high court just hours before his execution.

After the high court turned down Sells' request, attorneys Maurie Levin and Jonathan Ross said: "Without transparency about lethal injections, particularly the source and purity of drugs to be used, it is impossible to ensure that executions are humane and constitutional."

The state uses a compounding pharmacy to get its drugs, which have become scarce coast to coast as supplies from Europe have dried up and amid concerns about legal liability. Such pharmacies are subject to less government regulation. The drugs they dispense, used in combination with others, have caused problems in some recent executions.

The state defended its death penalty policy in its briefs in Sells' case, arguing that "there is no pharmacy, no drug, and no assurance of quality that would be satisfactory to him."

The Supreme Court rejected a similar request last month from a death row inmate in Missouri who was subsequently executed. It has pending petitions from death row prisoners in Louisiana and Missouri, either of which could become a test case next fall on the standards states use to ensure condemned prisoners aren't denied their constitutional rights during execution.

Texas executes the most prisoners in the country; Sells was its fifth lethal-injection execution this year. Some states that use capital punishment have delayed executions, and some courts have blocked them, because of the difficulty in finding drugs and suppliers.

Last month, judges in Oklahoma and Louisiana ruled that those states could not hide the identities of their suppliers and manufacturers.

The struggle to find lethal-injection drugs comes as executions are on the decline. While 32 states still have capital punishment on their books, the number of executions has dropped from 98 in 1999 to 39 last year.

In recent years, Connecticut Illinois, Maryland, New Jersey, New Mexico and New York have abolished the death sentence. Governors in Colorado, Oregon and Washington have suspended the punishment. Courts have halted executions in Arkansas, Georgia, Louisiana and Tennessee over lethal-injection issues.